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Friday, July 22, 2011

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ABA defends oversight of law schools

In a 67-page memo responding to 31 questions posed by Sen. Charles Grassley (R-Iowa), American Bar Association President Stephen Zack wrote that the association's role is to ensure that accredited law schools produce graduates who can be lawyers, not to regulate the number of new lawyers based on economic conditions. Denying accreditation to schools that meet its standards would violate Department of Education regulations, the association wrote. Earlier in the month, Grassley had written to the ABA expressing concern over the debt and job prospects of law graduates and requesting detailed information about student scholarships and accreditation.

Law.com looks into it

TODAY'S OPINIONS
Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format. To search all opinions in the TBALink database or to obtain a text version of each opinion, go to our OpinionSearch page. If you have forgotten your password or need to obtain a password, you can look it up on TBALink at the TBA's Membership Central.

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You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. 2) Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion.

STEPHEN BROWN v. COLUMBIA PRECAST, LLC, ET AL.

Court: TCA

Attorneys:

T. Jake Wolaver, Columbia, Tennessee; John D. Kitch, Nashville, Tennessee, for the appellants, Columbia Precast, LLC, Roger Teague, Barbara Teague.

Ben Boston, Ryan P. Durham, Lawrenceburg, Tennessee, for the appellee, Stephen Brown.

Judge: COTTRELL

An employee was promised 10% ownership interest in the company he worked for if he stayed with the company for six years. When the time came to transfer the employee's 10% interest to him, however, the parties learned that the tax laws then in effect made the transfer impractical at that time. The parties therefore decided to delay the transfer. The parties entered into a contract the following year which the employer interpreted to mean that the employee was giving up his 10% ownership interest in exchange for a raise in his salary plus 10% of the company's net profits each year. The employee claimed he did not give up his 10% ownership interest and sued the company and former majority owner for his 10% interest when the company was sold a few years later. The trial court concluded the employee did not give up his 10% ownership interest by signing the later agreement and awarded the employee 10% of the company's net profits for the years following the employee's termination plus 10% of the ultimate purchase price. We affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2011/brownss_072211.pdf

EDDIE FRANK GRAVES v. TENNESSEE DEPARTMENT OF CORRECTION ET AL.

Court: TCA

Attorneys:

Eddie Frank Graves, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lucy Honey Haynes, Deputy Attorney General; and David S. Sadlow, Assistant Attorney General, for the appellees, Tennessee Department of Correction, Reuben Hodge, and Derek Schofield.

Judge: CLEMENT

Petitioner appeals from the dismissal of three petitions for writ of certiorari for review of his disciplinary conviction for assault while incarcerated at the South Central Correctional Facility. The trial court dismissed the action based on Petitioner's failure to adhere to the statutory verification requirements in his petitions. Petitioner appealed. We affirm.

http://www.tba2.org/tba_files/TCA/2011/gravese_072211.pdf

MORGAN KEEGAN & COMPANY, INC. v. WILLIAM HAMILTON SMYTHE, III, INDIVIDUALLY; WILLIAM H. SMYTHE, IV, TRUST U/A/DTD 12/29/87, WILLIAM H. SMYTHE, III, TRUSTEE; AND SMYTHE CHILDREN'S TRUST #2 FBO KATHERINE S. THINNES U/A/DTD 12/29/87
Opinion withdrawn on May 18, 2011

Court: TCA

Attorneys:

Christopher S. Campbell and Laura S. Martin, Memphis, Tennessee; and Dale Ledbetter, Fort Lauderdale, Florida, for the Respondents/Appellants, William Hamilton Smythe, III, et al.

John S. Golwen, William G. Whitman, and Annie T. Christoff, Memphis, Tennessee, for the Petitioner/Appellee Morgan Keegan & Company, Inc.

Judge: KIRBY

A question regarding this Court's subject matter jurisdiction to hear the appeal in this case was raised in the context of Appellant's Motion to File Petition for Rehearing Beyond the Ten Day Deadline in Rule 39(b), which motion was denied by this Court in a separate Order...The question of subject matter jurisdiction is so fundamental that appellate courts must consider it even if the parties do not raise the issue...In light of the fundamental importance of ascertaining the Court's subject matter jurisdiction, the Court hereby withdraws its March 24, 2011 Opinion in this cause. The parties are directed to file supplemental briefs on the issue of this Court's subject matter jurisdiction only.

Order Withdrawing Opinion
http://www.tba2.org/tba_files/TCA/2011/morgankeegan_032411.pdf

MICHAEL MORRIS v. TRUDY BLOODWORTH

Court: TCA

Attorneys:

Michael Morris, Nashville, Tennessee, Pro Se.

Mark C. Scruggs, Nashville, Tennessee, for the appellee, Trudy Bloodworth.

Judge: BENNETT

Inmate filed a legal malpractice action against the attorney who represented him in the direct appeal of his criminal conviction for aggravated robbery. Three years later, the trial court dismissed the inmate's lawsuit for failure to prosecute. We affirm the result reached by the trial court because the denial of the inmate's petition for post-conviction relief precludes his claim for legal malpractice.

http://www.tba2.org/tba_files/TCA/2011/morrism_072211.pdf

GERALD THOMAS v. RIVERGATE AUTO PARTS, ET AL.

Court: TCA

Attorneys:

Gerald Thomas, Nashville, Tennessee, Pro Se.

Rivergate Auto Parts, Inc., appellee, did not submit a brief.

Judge: COTTRELL

An individual took his automobile to an auto parts company, apparently to sell it for parts. The individual alleged that he had electronics and baseball cards in the automobile that were stolen at the auto parts company. The trial court dismissed the complaint without making findings of fact, and the individual appealed. The record contains the exhibits introduced at trial but no transcript of the proceedings or deposition testimony. Without a record of the proceedings from the lower court to review, we are unable to reverse the trial court or provide the appellant with the relief he seeks. We therefore affirm the trial court's judgment dismissing the complaint.

http://www.tba2.org/tba_files/TCA/2011/thomasg_072211.pdf

JOHN MICHAEL BANE v. STATE OF TENNESSEE

Court: TCCA

Attorneys:

Ann C. Short Bowers, Knoxville, Tennessee, and Marty B. McAfee, Memphis, Tennessee, for the Appellant, John Michael Bane.

Robert E. Cooper, Jr., Attorney General and Reporter; Frank Borger-Gilligan, Assistant Attorney General; William L. Gibbons, District Attorney General; John Campbell, Assistant District Attorney General, for the Appellee, State of Tennessee.

Judge: WEDEMEYER

In 1990 a Shelby County jury convicted, the Petitioner, John Michael Bane, of felony murder and imposed a sentence of death. On appeal, the Tennessee Supreme Court affirmed the conviction but remanded the case for resentencing. State v. Bane, 853 S.W.2d 483 (Tenn. 1993). After a new sentencing hearing, the jury again imposed a sentence of death, and the Tennessee Supreme Court affirmed the jury's imposition of this sentence. State v. Bane, 57 S.W.3d 411 (Tenn. 2001). The Petitioner filed a petition for post-conviction relief, which the post-conviction court denied after a hearing. The Petitioner now appeals, contending that: (1) he received ineffective assistance of counsel at his original trial and at his resentencing hearing; (2) the trial court erred when it instructed the jury; and (3) the death penalty is unconstitutional. After a thorough review of the record and applicable authorities, we affirm the post-conviction court's judgment.

http://www.tba2.org/tba_files/TCCA/2011/banej_072211.pdf

Legality of Legislator Serving as a Dispute Resolution Neutral

TN Attorney General Opinions

Date: 2011-07-11

Opinion Number: 11-58

http://www.tba2.org/tba_files/AG/2011/ag_11_58.pdf

Establishment and Maintenance of a Senior High School

TN Attorney General Opinions

Date: 2011-07-11

Opinion Number: 11-59

http://www.tba2.org/tba_files/AG/2011/ag_11_59.pdf

TODAY'S NEWS

Legal News
Tenn. Government
Disciplinary Actions
TBA Member Services

Legal News

Courts crack down on dress codes, even in this heat

It's hot outside but don't try to go to the courthouse in Knox or Henry counties in shorts, flip-flops or tank tops. Judges there are cracking down on who they will allow into their courtrooms. Knox County Judge Andrew Jackson said it's because the outfits keep getting more unacceptable -- last week he says a man came in his court wearing swim trunks. In Henry County, those who come to court dressed improperly will be given the option to go home and change clothes or wear an inmate uniform. "It's really a matter of respect," Circuit Court Clerk Mike Wilson said of the new dress code.

Video of execution goes forward

As promised, the execution of Georgia death-row inmate Andrew Grant DeYoung was videotaped last night even after several delays. The execution was pushed back a day to buy prosecutors more time to block the taping, but a second legal challenge was also rejected. The video recorded that when the three-drug injection began, DeYoung blinked his eyes and swallowed for about two minutes, then his eyes closed and he became still. Shortly thereafter he was pronounced dead. Death penalty experts say it sets a new precedent that will lead to a flurry of new legal moves seeking more public access to secretive death chambers.

The Atlanta Journal-Constitution reports

Admitted terrorist has Tennessee roots

The capital murder trial of admitted terrorist Abdulhakim Muhammad is underway in Little Rock for the 2009 shooting outside an Army recruiting station that killed one and wounded one. Muhammad, born Carlos Bledsoe in Memphis, changed his name in 2004 when he started practicing Islam while attending Tennessee State University in Nashville. He father has said his son was brainwashed and radicalized in Nashville mosques, an assertion denied by local Muslim leaders.

The Tennesseean reports

Lawyer's Forrest sculpture gets mixed reviews

The large statue of Confederate General Nathan Bedford Forrest on a rearing horse that towers next to I-65 in Nashville was sculpted by a lawyer, the late Jack Kershaw. The monument, described as "hideous" and "cartoonish," and its land are privately owned but it comes under fire regularly for its glorification of Forrest, who was involved in a massacre of black Union soldiers as well as for his role in the early days of the Ku Klux Klan. There are regular attempts to vandalize it. Kershaw, who died last year, was a segregationist, a secessionist and attorney to James Earl Ray. "As an artist, [Kershaw was] mediocre," the statue's owner says. "As a thinker, he was way ahead of a lot of people of his time."

WPLN learns more about it

Casey Anthony trial would affect this case, PD argues

A first-degree murder trial involving a baby's death will go on next week after a judge denied a defense motion to delay it because of Casey Anthony's not guilty verdict in Florida two weeks ago. Public Defender Jeff Kelly's motion contended that the recent verdict would affect jurors' impartiality. "Jurors cannot set aside the possibility of threats and private and public accountability should they decide to find the defendant not guilty," Kelly wrote. Criminal Court Judge Robert Cupp didn't buy that, so the trial for Russell Long, 26, and Jessica Adkins, 23, will begin as scheduled on Tuesday.

The Johnson City Press has the story

CASA of the Ninth Judicial District is now taking applications from prospective volunteers to become court-appointed special advocates.

Learn more from CASA

Anita Hill joins plaintiff's firm

Anita Hill said today she is returning to Washington part time to take a position at the plaintiffs firm Cohen Milstein Sellers & Toll, saying she wants to merge her academic experience with the on-the-ground practice of civil rights litigation. Hill, who teaches social policy, law and women's studies at Brandeis University, will be of counsel to the firm. She makes the move just before the 20th anniversary of her testimony at Clarence Thomas' confirmation hearing on Capitol Hill, where she accused the future U.S. Supreme Court justice of sexual harassment.

The Blog of Legal Times reports

UT law grad fights 'war on photography'

Morgan Manning summarizes his research findings on a topic that has become more relevant since 9/11 and the mass proliferation of cellphone cameras: law enforcement officials "detaining or arresting photographers, and in many cases confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places at lawful times, partaking in lawful activities." Manning, a UT law grad who practices law in Virginia, says this "War on Photography" needs to stop.

The News Sentinel has his column

Group hacks into state site in retaliation for new law

A group claiming responsibility for hacking into Tennessee's government website says it did so in retaliation against a new state law that would make it a crime in Tennessee to post pictures online that would cause someone emotional distress. The group released a file that included hundreds of names and addresses that were found on the government website, tn.gov. The law, they say in a video posted on the site, is "a bold attempt to crush our freedom of speech."

WSMV has the story

Tenn. Government

Bell promises to cause 'problems' for judicial selection renewal

State Sen. Mike Bell, R-Riceville, told the Kiwanis Club of Cleveland that he would use his position on the the Senate Government Operations Committee to scuttle the reauthorization of the judicial selection plan, which will come up next year. "I promise you it's going to have problems in that committee. It's going to have all the problems I can create in that committee," he said.

The Cleveland Daily Banner reports

What, me worry? Haslam's take on credit rating

Gov. Bill Haslam says he's not overly concerned if the nation's credit rating is lowered in the event of a legislative impasse on the debt crisis. Tennessee is in "maybe one of the two or three best financial shapes of any state out there," he told reporters. "Regardless, the state of Tennessee will be in good shape."

Bloomberg BusinessWeek has more

Dems have plans for that 'extra' money

Following two years of decline, state revenue is above projections for the last 12 months. The state legislature's Democratic Caucus said Thursday it will push to use the state's improving revenues to cut the sales tax on food and bolster need-based college scholarships next year.